For over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel. The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate. Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel. The decision came as part of the grand jury investigation into Trump confidant Roger Stone.
While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command. This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court. Kavanaugh is a long critic of Morrison. However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer. However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.
The challenge was brought by the aide to Stone, Andrew Miller. His able counsel pressed three attacks on the Mueller’s authority under the Appointments Clause of the Constitution, U.S. CONST. art. II, §2, cl. 2. First, they claimed that the Special Counsel is a principal rather than inferior officer. If Mueller is a principle officer, he must be nominated by Trump and confirmed by the Senate. Second, they argued that no statute authorized the Special Counsel’s appointment. Finally, they argued that Rosenstein lacked authority to appoint Mueller. It was the first argument that has attracted the most academic interest but Mueller swept the table on all three challenges.
While many have portrayed Kavanaugh’s concerns about Morrison as a partisan issue, it is not. As the Court stated in Edmond v. United States, 520 U.S. 651, 660 (1997) “[T]he Appointments Clause was designed to ensure public accountability for both the
making of a bad appointment and the rejection of a good one.” The clause guarantees care and accountability in the selection of these powerful individuals. This concern was magnified for many in the appointment of Robert Mueller, who has been criticized by Trump and others as having conflicts of interest in his position. Indeed, when Mueller was appointed, I expressed surprise that he was even on the list and I have maintained that both Mueller and Rosenstein have conflicts. However, I supported the appointment of a Special Counsel and I believe Mueller should be allowed to finish his work unimpeded.
The 92-page ruling by Chief Judge Beryl Howell gave Mueller a ringing victory that could be cited in other jurisdictions as persuasive authority. She ruled that the “scope of the Special Counsel’s power falls well within the boundaries the Constitution permits.”
Edmond clarified that the first of these factors—whether an officer is “subject to removal by a higher . . . official”—is by far the most important to a Court’s determination of principal-inferior status, while reformulating that factor into a broader inquiry into whether an officer’s “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” 520 U.S. at 663. “Generally speaking,” Edmond explained, “the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior.” Id. at 662; accord Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (“PCAOB”), 561 U.S. 477, 510 (2010) (applying Edmond to conclude that officials were inferior rather than principal due to the agency’s “oversight authority” and “power to remove . . . at will”).11 Indeed, Edmond held that an officer with a presidentially-nominated, Senate-confirmed superior is inferior even if all three other Morrison factors—the magnitude of an officer’s duties,
jurisdiction, and tenure—weigh toward principal officer status. 520 U.S. at 661–62 (concluding that a Coast Guard Court of Criminal Appeals judge was an inferior officer despite that “the last two [Morrison factors—limited jurisdiction and tenure] do not hold . . . here” and that such judges “are charged with exercising significant authority on behalf of the United States”).
nominated by the President nor confirmed by the Senate, and thus was unconstitutionally appointed. See Witness’s Mot. at 14. As explained in more detail below, however, the Attorney General has ample legal authority to “direct and supervis[e]” the Special Counsel, which makes the Special Counsel an inferior officer. Edmond, 520 U.S. at 663. To the extent relevant, theremaining three Morrison factors each weigh in favor of inferior officer status. Nor does thebreadth of the authority the Special Counsel wields negate his inferior officer status. The witness’s argument that the Special Counsel is a principal officer thus does not pass muster.